Navigating the SOPA Soap Opera

On a list of people I’d most like to spend New Year’s Eve with, lawyers don’t rank particularly high – well below musicians, writers, and doctors, though still above the likes of actuaries, SEO experts, and whatever Fergie is. But somehow I found myself ringing in 2012 amidst a group of recent Bar-passers, only a few of whom I’d actually met before that night.

Thankfully, the legal discussions were kept to a minimum – really, how much is there to say about your first soul-crushing firm job? – but over brunch the next morning, that lurking J.D. came out to play. Our host – whose well-curated soundtrack I’d enjoyed throughout the night – explained her hesitation about joining a long-distance mix-CD swapping group with some friends. She wasn’t concerned about the time commitment, the potentially divergent tastes of other group members, or even the essential old-fogeyness of trading physical music in a digital age. No, she was worried about the legal ramifications – it being a crime to copy and distribute discs of copyrighted music, as she learned in her intellectual property class.

Though it’s an overly cautious response – burning and mailing a few CDs registers pretty low on the IP violation scale – she can be excused for being on high alert. A couple of pieces of legislation currently under consideration in Congress have put copyright law back in the spotlight, and could have major implications for music fans.

The House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect I.P. Act (PIPA) both seem well-intentioned, as they aim to protect the owners of copyrighted content (like music and video) from unlawful streaming and use. But the realities of how that protection could be enforced are alarming; according to a summary of the bills on OpenCongress, upon determining that a site was “dedicated to infringing activities” the U.S. Department of Justice could require search engines and social networking sites to block access to that site, sometimes without even allowing the infringer a day in court (a provision that directed internet service providers to break DNS to block the site, which caused major cybersecurity concerns among industry experts, was dropped from SOPA on 13 January and may be dropped from PIPA as well).

Though such a response would purportedly be limited to rogue foreign sites – domestic sites remain subject to current copyright laws – many have come out against the legislation for numerous reasons, including the potential effect on U.S.-based payment processors and advertisers and the potential for abuse of power by media corporations. If you aren’t familiar with the bills, check out The Verge’s simple explanation, and find further updates on ReadWriteWeb, though keep in mind that the details are evolving.

For music fans, this legislation is just the latest volley in a long battle over content ownership. We all know what effect online piracy had on the music industry – college was pretty much an orgy of remorseless downloading for most people I know – but we also know that the high only lasted so long. Service shutdowns and lawsuits were part of stemming the tide, sure, but at a certain point it became less acceptable to steal music – or at least, less acceptable to brag about it. That’s largely because legal music consumption became a much more affordable proposition; instead of being forced to pay $15 for a CD, you might quickly pay 99 cents for a song on iTunes, or subscribe to a service like eMusic for a flat monthly fee.

The consumer now had more control – and to openly steal felt less like rebellion against an unfair system and more like being cheap. This didn’t stop unlawful downloading, but it did make many people think twice.

Now there’s the latest crop of streaming services, like Spotify and Rdio, which offer free musical enjoyment, with a catch (limited listening hours, and subscriptions that offer ad-free access on any device). They’re services that earn income from the most committed consumers, with the understanding that many others, who only pop in occasionally, will essentially get a free ride. (The strategy is pretty similar to what many newspaper websites are attempting with article-threshold paywalls, which keep content mostly accessible for all but aim to extract money from the dedicated few.)

The idea is promising, but not everyone sees the benefit. The Black Keys, Adele, and Coldplay are among several artists who have withheld their music from Spotify, saying the per-play fee they receive is not enough to make up for hypothetical sales losses. While that view is not necessarily wrong – few artists, and even fewer independent ones, have made money from the service – it is short-sighted. Those artists and labels might not see a huge revenue boost from Spotify (this may change as the subscriber pool grows), but they risk missing out on new listeners by declining to participate. Free content can be a first step toward a deeper, more lucrative relationship with fans.

What about the non-Spotify subscribers who use the service to sample tracks and then decide to purchase them on iTunes? I know those people exist; I’m one of them.

Also, it’s not like shunning Spotify – or similar streaming services – keeps music any more protected. If consumers want to listen to your music, they’ll find it somewhere; why not at least have it be somewhere you have some control over (and financial interest in) the transaction? A simple search on YouTube, Grooveshark, or other non-label-sanctioned streaming sites results in tons of free songs to stream – not to mention rogue remixes by amateur artists looking to score some notoriety (and potentially gaining the real artists some new fans in the process). To really keep things protected, you’d have to shut down the internet as we know it – even if SOPA and PIPA don’t do that, they at least set a dangerous precedent.

The recording industry has famously lacked a sense of humor or rationality when it comes to piracy. Like many that failed to understand how the internet would affect their business models, the industry reacted too late and too extremely – for example, by engaging in aggressive litigation against copyright offenders as young as 12. While many labels and artists have found ways to adapt to the new reality in recent years, utilizing social media, creative packaging, and other efforts, the RIAA’s stance remains clear: pirates must be punished.

In a 4 January blog post, RIAA senior vice president Mitch Glazier wrote that sites allowing copyright violations are no less than “an ongoing threat to the security and safety of our citizens.” The post was part of the RIAA’s rejection of the Online Protection and Enforcement of Digital Trade (OPEN) Act proposed by Representative Darrell Issa and Senator Ron Wyden as an alternative to SOPA/PIPA. On Ars Technica, Eric Goldman called the more modest OPEN Act, which is supported by many internet companies, a “useful starting point for a sensible conversation that could actually lead to acceptable compromises.”

To this point, the RIAA and other SOPA/PIPA supporters have not been interested in having that kind of conversation. You’d think the negative response to the legislation would at least invite some second thoughts, but that doesn’t appear to be the case. That’s the most frustrating part of this whole thing, for me; it feels like an uncreative, uncompromising reaction to a situation that demands more thoughtful consideration.

There are actually plenty of positive examples of how content creators can survive, and even thrive, without draconian measures. Take Louis C.K.’s recent self-released comedy experiment, whose improbable success was dependent on trusting people not to give the video away to their friends on torrent sites. He did it not by locking down his content, but by giving his fans what they wanted in an open, honest fashion. Amazingly, people responded to that – even though some would-be pirates posted the content, Louis’ army of fans encouraged others to disregard it and pay their five bucks.

It’s not the first time that faith in hardcore supporters has paid off – just ask Radiohead and Wilco, both of whom have had success by offering music for next to nothing. A recent blog post from the music site Bandcamp offers encouraging signs that while piracy still exists, getting people to pay for music is not a lost cause. Bandcamp, which allows artists to sell directly to the public, found that many of its sales came from users who’d originally searched for torrents and other free music sources, but made a purchase at Bandcamp due to encouragement from other fans and the site’s own superior experience and search optimization. I won’t go so far as to say that people naturally want to pay for music, but given the right situation (good content, convenient access, even a little public shame), they will. Innovative ideas that create these situations is what will truly sustain the music industry, not drastic measures that threaten new potential revenue and discovery channels for artists and labels (see Outside the Box Music and the Fractured Atlas Blog for some artists’ takes on SOPA).

We probably can’t rely on entrepreneurs alone. Legislative involvement is likely going to be necessary to address this issue, but we clearly haven’t hit upon the right formula just yet. We need some kind of solution that respects the new reality of the market, while still ensuring some chance of economic survival for content creators. I don’t have all the answers – but I did just meet a few smart IP lawyers.

Ben is a writer, editor and partly reformed music snob living near Boston. He has a website, like everyone else.